What to do with 1,200 CDs I don't need

Herman,

I think it's time to throw in the towel. He's already made up is mind as to what he thinks is legal.
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I poled a dozen friends today and 11 off them thought that it was legal to make copies of CD's and give them to friends. They thought that it was illegal to sell copies, but perfectly legal to give them away as gifts. In addition, 8 of them thought that "ripping" is done in the analog domain. One guy thought that after you make two digital copies, the original CD would stop working. He also thought that a hard drive records data in the analog domain like a record cutting lathe. LOL.

I think the RIAA needs to spend more time and money on educating the public instead of sueing people. BTW, I'm not a big fan of the RIAA, but I think it's important to support the artists.

One of the core problems here is that the term "fair use" is not black and white:

(i) The RIAA interprets fair use *not* to include any of the activities you have discussed, Onhwy61.

(ii) On the other hand, legal scholars seem to interpret most, or all, of the activities you mentioned as fair use.

The theft/loss thing is a red herring. I cannot fathom a judge that would say subsequent loss or theft of a CD that has been copied to render an otherwise legitimate copy not to constitute fair use.

The gray area here is copying with the intent of continuing to listen to the copy, and then reselling the original. It is the essence of infringement to copy an *original* and sell the *copy*. The difficulty in a digital age is that it is quite possible to make a copy that is an exact duplicate of the original (album art is a red herring too--that can be copied as well), so the practical distinction between the original and copy is nonexistent. Is there a legal distinction between the original and the copy? Yes, the first sale provisions of the copyright act make that clear. Should there be a distinction in an era where exact duplicates can exist? Probably not in my mind.

If you read the legal debate, the problem is that legal scholars seem to be flummoxed by the notion that a subsequent act could render a prior act not fair use--the typical interpretation of the law is that the act of copying is either fair use or it is not. What you do later should not change that analysis because its the act of copying itself that is legal or illegal.

However, the legal debate also ends up being very fact dependent. I can easily construct a case where a judge would--in all likelihood--find an instance of copying and reselling not be be fair use. If I buy a bunch of CDs, copy them, and resell the originals and there is a clear, documented intent on my part to buy them with the intent of copying them and reselling them, I would bet a judge would find that my acts of copying are not fair use. I can also construct a scenario that goes the other way--if I buy a bunch of CDs, copy them, and 10 years later give a couple away, I doubt very seriously that any judge would determine that my copies are not fair use.

Just because the actual terms of the copyright act haven't caught up with the digital age, however, does not mean that what you are doing is *right*. What is right and what is legal are entirely distinct. If there is no practical distinction between an act that is infringement (copying an original and selling the copy) and an act that may or may not be infringement (copying the original and selling the original), and we agree that infringement is bad, then it seems to me that the law misses but morality shouldn't.

Prpixel: Quite a group of friends there ;^)

Herman:

For me the simple test is what would you consider fair if you were on the other side of the fence? I find it hard to believe you could support your position if you made your living from your music.

The truth is I know several people who make (or try to make) their primary living from music, receive checks from BMI/ASCAP, and do exactly the kinds of things most people do when it comes to copying and circulating copyrighted recorded music on a limited basis (I don't know, however, what their file-sharing stances or habits are). And as I've said repeatedly, I don't think this question represents a zero-sum game, or that practices like this might not help, rather than harm, artists in the big picture. But I agree with your decision to keep your disks. (As for the sonic aspect, the only hard-disk-based device that's been hooked-up to my system, an Alesis MasterLink recorder/burner, does not sound quite as good feeding my DAC from its hard-drive as the same material sounds played from the CD via my Theta transport. And all CD-R's burned on several devices and brands of blanks have never sounded as good as the originals.)

Yes, it's getting harder and harder to find "audiophile" and tech savy friends.

BTW - the guy who thought that hard drives are like records is a custom installer of audio/video. Scary, isn't it?

Edesilva, very nice analysis. I fully recognize that this issue is not fully legally decided and I would imagine that future court cases will only partly clarify the morass.

The RIAA is not a consumer advocate group. They would love to have CDs granted the protections that computer software makers are currently provided. I believe I am in a majority position in arguing that new legislation would have to be enacted to bring them there. Such new legislation would be an erosion of privileges currently enjoyed by consumers.